Rape Exceptionalism Returns to California: Institutionalizing a Credibility Discount for College Students Reporting Sexual Misconduct

19 Pages Posted: 24 Nov 2020

Date Written: December 1, 2019

Abstract

Recent litigation filed by students disciplined for student conduct code violations involving sexual misconduct persuaded some federal and state courts to reconsider student rights in college disciplinary adjudications. Although most of the litigation was unsuccessful, the few, but significant, victories have been hailed as evidence that Title IX forced colleges to overcorrect their responses to campus sexual assault by abandoning procedural fairness for respondents. This framing of the issue is misleading and contributes to problematic outcomes. Rather than apply settled law to address procedural errors in individual cases, a few courts created new, unprecedented procedural rights for college students accused of sexual misconduct.

Embedded within the discussion of why students facing college discipline for sexual misconduct need procedural protections not afforded to students facing other kinds of student misconduct is “rape exceptionalism”—the insidious myth that students reporting sexual assault are more likely to lie than students reporting other kinds of misconduct. By creating new procedural rights for student respondents in sexual misconduct cases to cross-examine complainants and witnesses in a live hearing setting in order to test credibility, courts are effectively ordering colleges to institutionalize processes that discount the credibility of students reporting sexual assault. They are forcing colleges to signal to their students that victims of sexual assault are less trustworthy and therefore must submit themselves to credibility testing in an adversarial

This Article focuses on a 2019 California appellate opinion that required most public and private colleges in the state to rewrite their procedures for campus sexual misconduct adjudications. It shifts the focus from the discussion about the individual rights of student respondents to the implications of this abrupt change in state law for California student victims of sexual assault. This Article further considers the potential impact of this case on a college’s ability to respond to campus sexual assault.

Keywords: Campus sexual assault, Title IX, sex discrimination, due process

Suggested Citation

Behre, Kelly Alison, Rape Exceptionalism Returns to California: Institutionalizing a Credibility Discount for College Students Reporting Sexual Misconduct (December 1, 2019). Oklahoma Law Review, Vol. 73, p. 101, 2020, Available at SSRN: https://ssrn.com/abstract=3713251

Kelly Alison Behre (Contact Author)

UC Davis School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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